Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22342/93

Erol Dür

against

Austria

REPORT OF THE COMMISSION

(adopted on 16 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-26) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-25). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 26). . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 27-38) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 27). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 28). . . . . . . . . . . . . . . . . . . . .6

C. Article 6 of the Convention

(paras. 29-37). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 38). . . . . . . . . . . . . . . . . . . . .8

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1964 and resident in

Vienna. He was represented before the Commission by Mr. H. Pochieser,

a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their agent, Ambassador F. Cede, Head

of the International Law Department of the Federal Ministry for Foreign

Affairs.

4. The case concerns the refusal of the Austrian courts to summon

and hear the applicant's brother as witness in criminal proceedings

instituted against the applicant. The applicant invokes Article 6

paras. 1 and 3 (d) of the Convention.

B. The proceedings

5. The application was introduced on 17 June 1993 and registered on

26 July 1993.

6. On 12 October 1994 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 23 January 1995

after an extension of the time-limit fixed for this purpose. The

applicant replied on 17 march 1995.

8. On 16 January 1996 the Commission declared admissible the

applicant's complaint about the alleged unfairness of the criminal

proceedings against him. It declared inadmissible the remainder of the

application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 30 January 1996 and they were invited to submit such

further information or observations on the merits as they wished. No

such observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

12. The text of this Report was adopted on 16 October 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 21 November 1991 the chief of the Deutsch Wagram Police

Station (Postenkommandant) laid a criminal information against the

applicant and his brother I. with the Korneuburg Public Prosecutor's

Office (Staatsanwaltschaft). According to the criminal information,

on 21 November 1991, at 5.20 hours, the applicant's brother had tried

to resist his arrest, which had been ordered with a view to his

deportation to Turkey, by hitting and kicking the police officers

concerned. The applicant had also resisted public authority in that

he too had attacked the police officers. The applicant and his brother

had finally been arrested. The applicant's brother had then been

brought to the airport and at 9.30 hours had been handed over to the

airport police for deportation. At about 11.30 hours the detention

order (Schubhaftbescheid) had been served on counsel for the

applicant's brother. The deportation had taken place at 13.15 hours.

The applicant himself had been released at 11.30 hours. The Public

Prosecutor, who had been informed of the events by telephone, had made

no objections to the deportation of the applicant's brother, as he

found that any possible criminal prosecution could be taken over by the

Turkish authorities.

17. On 26 November 1991 the Korneuburg Public Prosecutor filed a bill

of indictment against the applicant charging him with attempted

resistance to public authority (versuchter Widerstand gegen die

Staatsgewalt). The Public Prosecutor requested that the five police

officers concerned and the applicant's brother be heard as witnesses

at the trial.

18. On 17 January 1992 the applicant, who was then assisted by

counsel, requested that his brother and A.T., who had been present at

the events on 21 November 1991, be heard as witnesses.

19. On 23 March 1992 the trial (Hauptverhandlung) of the applicant

took place before the Korneuburg Regional Court (Kreisgericht). In the

course of the trial the Regional Court heard the five police officers

and A. T. as witnesses. As regards the events in the morning of

21 November 1991, A.T. stated that after the police officers had

arrived he had left to make a telephone call. On his return he had told

the applicant, who had a heated discussion with the police officers,

to calm down and had then started to prepare breakfast. He had not

paid attention to what was going on around him. The applicant's

counsel requested again that the applicant's brother be heard as a

witness. This request was refused by the Regional Court, which found

that the applicant's brother had been deported to Turkey and therefore

had to be considered as an "unobtainable means of evidence" (nicht

greifbares Beweismittel).

20. On the same day the Regional Court convicted the applicant of

attempted resistance to public authority and sentenced him to four

months' imprisonment suspended for a probationary period of three

years. The Regional Court, having regard to the evidence taken, found

that the applicant had hit and kicked the police officers who carried

out his brother's and his own arrest. The arrest had initially been

carried out by two police officers, who, in view of the resistance, had

called for reinforcement. Subsequently three more police officers had

arrived and it had taken three police officers to break the applicant's

resistance and to carry out his arrest.

21. On 24 June 1992 the applicant introduced an appeal with the Court

of Appeal. He submitted that the Regional Court had wrongly refused

to hear his brother as a witness for the defence. He submitted further

that in the meantime his brother had introduced a complaint with the

Independent Administrative Panel (Unabhängiger Verwaltungssenat)

complaining that his arrest and deportation to Turkey had been

unlawful.

22. On 29 June 1992 the Lower Austrian Independent Administrative

Panel, upon the complaint by the applicant's brother about his arrest,

subsequent detention and deportation to Turkey, decided that the

applicant's brother's arrest on 21 November 1991 at 5.30 hours and his

detention until 11.30 hours, when the detention order was served on the

lawyer, had been unlawful and dismissed the remainder of the complaint.

The Administrative Panel found that, at the time of the arrest of the

applicant's brother, the order for detention with a view to his

deportation had not yet been served on the lawyer of the applicant's

brother. Therefore the arrest and the detention until 11.30 hours had

been unlawful. The subsequent detention and the deportation to Turkey,

however, had been based on a lawful and enforceable detention order and

on an enforceable residence prohibition.

23. On 25 August 1992 a hearing took place before the Court of Appeal

on the applicant's appeal, in the presence of the applicant and his

counsel. The applicant filed the decision of the Administrative Panel

of 29 June 1992.

24. On the same day the Court of Appeal dismissed the applicant's

appeal against his conviction but replaced the prison sentence by a

fine of 100 daily rates of ATS 100 each.

25. The Court of Appeal found that the Regional Court had acted

correctly when refusing to hear the applicant's brother as a witness.

His brother had not been a means of evidence available to the court as

he was staying in Turkey and a residence prohibition in Austria had

been imposed on him. In particular it was not for the trial court to

arrange, pursuant to Section 6 of the Aliens Act, that the enforcement

of the residence prohibition be suspended for the purposes of the

trial. Furthermore the Court of Appeal noted that the public

prosecutor had agreed to the applicant's brother's deportation because

he had found that any possible criminal prosecution could be taken over

by the Turkish authorities.

The Court of Appeal had no doubts as to the Regional Court's

assessment of evidence, which it found sufficient in that, based on the

personal impression the witnesses had made on the Regional Court, it

had provided the main reasons for considering the witnesses credible,

and was in accordance with the principles of logic and the contents of

the file. The Court of Appeal further found that the Administrative

Panel's decision of 29 June 1992 had no effect on the lawfulness of the

applicant's own arrest, which was not based on the detention order.

B. Relevant domestic law

26. Section 6 para. 1 of the Aliens Police Act

(Fremdenpolizeigesetz), as in force at the relevant time, provides as

follows:

[Translation]

"An alien on whom a residence prohibition has been imposed must

leave the area to which the prohibition applies within a week

after the decision has become legally effective. While the

prohibition is in force, he may not return to the area without

official permission."

[German]

"Der Fremde, gegen den ein Aufenthaltsverbot erlassen worden ist,

hat das Gebiet, in dem ihm der Aufenthalt verboten ist, innerhalb

einer Woche nach Rechtskraft des Bescheides zu verlassen. Er

darf dieses Gebiet während der Geltungsdauer des

Aufenthaltsverbotes ohne Bewilligung nicht wieder betreten."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. The Commission has declared admissible the applicant's complaint

about the alleged unfairness of the criminal proceedings conducted

against him.

B. Point at issue

28. Accordingly the issue to be determined is whether there has been

a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention.

C. Article 6 (Art. 6) of the Convention

29. Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention,

insofar as relevant, read as follows:

"1. In the determination of ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him ..."

30. The applicant maintains that the criminal proceedings conducted

against him were unfair because the Austrian courts refused to summon

his brother as witness for the defence. The Regional Court heard as

witnesses only several police officers and A.T., who, according to his

statement, had not himself witnessed the events or could not remember

them. Therefore his brother was the only eye witness who could have

exonerated him. The Regional Court also did not consider the

statements of his brother to be irrelevant for the proceedings. He

contradicts the Regional Court's reasoning that this witness was an

unobtainable means of evidence.

31. In the applicant's view it would have been preferable to have his

brother questioned in Austria. The Austrian courts could have summoned

his brother to appear at the trial. In this respect the Government's

description of the legal situation under Section 6 para. 1 of the

Aliens Police Act is misleading. It is true that the courts themselves

could not have granted permission to the applicant's brother to return

to Austria nor could they have requested the administrative authorities

to issue a permission under Section 6 para. 1 of the Aliens Police Act

to the applicant's brother. However, if the Austrian courts had

summoned the applicant's brother, he could have requested the

administrative authorities to grant him a permission to re-enter

Austria under Section 6 para. 1 of the Aliens Police Act. According

to this provision a person on whom a residence prohibition has been

imposed may be allowed to re-enter Austria for a short stay if this is

necessary in the private or public interest. According to case-law of

the Administrative Court the necessity to appear before a court is a

valid reason for applying for a permission under Section 6 para. 1 of

the Aliens Police Act.

32. The Government submit that according to the Convention organs'

case-law Article 6 para. 3 (d) (Art. 6-1, 6-3-d) of the Convention does

not grant an unlimited right to question or summon defence witnesses.

The trial court can refuse to hear witnesses if it finds that the

statements expected are not relevant to the establishment of the

truth. In the present case the Regional Court heard six witnesses,

including A.T., who had been called as witness for the defence. Not

even A.T. supported the applicant's defence according to which he had

not resisted the police officers and had remained calm throughout the

events. Rather, A.T. stated that at a certain moment he had told the

applicant to calm down. In these circumstances the Austrian courts

could reasonably have concluded that the statements of the applicant's

brother would have been irrelevant to the case.

33. Furthermore the Austrian courts had found correctly that the

applicant's brother did not offer an available means of evidence. The

courts could have asked the Turkish authorities to question the

applicant's brother under letters rogatory, but since the courts would

not have got a direct impression of the witness and such proceedings

were very lengthy this would not have been a very effective means of

gathering evidence. Moreover, the Austrian courts were unable to

summon the applicant's brother to appear at the trial because a

residence prohibition had been imposed on him. The courts were not

competent to lift the residence prohibition nor could they formally

request the competent administrative authorities to issue a permission

under Section 6 para. 1 in fine of the Aliens Police Act to the

applicant's brother allowing him to re-enter Austria.

34. The Commission recalls that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific

aspects of the general concept of fair trial set forth in paragraph 1

of this Article. In the circumstances of the present case, it will

consider the applicant's complaint under the two provisions taken

together (see Eur. Court HR, Isgro v. Italy judgment of

19 February 1991, Series A no. 194-A, p. 12, para. 31).

35. The Commission recalls further that Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention does not give an absolute right to the

examination of every witness proposed by the defence. In particular

it is in the trial court's discretion to refuse to take evidence which

is considered irrelevant and unobtainable (Eur. Court HR, Engel and

others v. the Netherlands judgment of 6 June 1976, Series A no. 22,

p. 38, para. 91; No. 8417/78, Dec. 4.5.79, D.R. 16 p. 200;

No. 18962/91, Dec. 30.6.93, unpublished).

36. The Commission observes that the Austrian courts did not address

the issue of the relevance of the evidence to be given by the

applicant's brother. Indeed, their refusal to hear the applicant's

brother as witness was not based on any considerations concerning the

relevance of the evidence to be given. Rather, noting that he had been

deported following a residence prohibition, the Austrian courts

regarded him as an "unobtainable means of evidence". The Commission

observes that the Austrian courts arrived at this conclusion without

making any attempt at all to obtain the testimony of this witness. In

the first place, the Austrian courts could have summoned the

applicant's brother as witness notwithstanding the residence

prohibition imposed on him. In that case the applicant's brother could

have applied for a permission to re-enter Austria. There is nothing

to show that such a request by the applicant's brother would have been

without any prospect of success from the outset. Furthermore, there

were no legal obstacles to questioning the applicant's brother under

letters rogatory with the assistance of the Turkish authorities.

37. The Commission finds that in such circumstances the failure of

the Austrian courts to make any attempt to obtain the testimony of the

applicant's brother amounted to a violation of Article 6 paras. 1 and

3 (d) (Art. 6-1, 6-3-d) of the Convention.

CONCLUSION

38. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1,

6-3-d) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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